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[Federal Register Volume 80, Number 49 (Friday, March 13, 2015)]
[Rules and Regulations]
[Pages 13253-13263]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05646]

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DEPARTMENT OF TRANSPORTATION

49 CFR Parts 27 and 37

[Docket OST-2006-23985]
RIN 2105-AE15

Transportation for Individuals With Disabilities; Reasonable 
Modification of Policies and Practices

AGENCY: Office of the Secretary (OST), U.S. Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Department is revising its rules under the Americans with 
Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 
1973, as amended (section 504), specifically to provide that 
transportation entities are required to make reasonable modifications/
accommodations to policies, practices, and procedures to avoid 
discrimination and ensure that their programs are accessible to 
individuals with disabilities.

DATES: This rule is effective July 13, 2015.

FOR FURTHER INFORMATION CONTACT: Jill Laptosky, Office of the General 
Counsel, 1200 New Jersey Avenue SE., Washington, DC 20590, Room W96-
488, 202-493-0308, jill.laptosky@dot.gov. For questions related to 
transit, you may contact Bonnie Graves, Office of Chief Counsel, 
Federal Transit Administration, same address, Room E56-306, 202-366-
0944, bonnie.graves@dot.gov; and, for rail, Linda Martin, Office of 
Chief Counsel, Federal Railroad Administration, same address, Room W31-
304, 202-493-6062, linda.martin@dot.gov.

SUPPLEMENTARY INFORMATION: This final rule concerning reasonable 
modification of transportation provider policies and practices is based 
on a notice of proposed rulemaking (NPRM) issued February 27, 2006 (71 
FR 9761). The NPRM also concerned several other subjects, most notably 
nondiscriminatory access to new and altered rail station platforms. The 
Department issued a final rule on these other subjects on September 19, 
2011 (76 FR 57924).

Executive Summary

I. Purpose of the Regulatory Action

    This final rule is needed to clarify that public transportation 
entities are required to make reasonable modifications/accommodations 
to their policies, practices, and procedures to ensure program 
accessibility. While this requirement is not a new obligation for 
public transportation entities receiving Federal financial assistance 
(see section 504 of the Rehabilitation Act), including the National 
Passenger Railroad Corporation (Amtrak), courts have identified an 
unintended gap in our Americans with Disabilities Act (ADA) 
regulations. This final rule will fill in the gap. The real-world 
effect will be that the nature of an individual's disability cannot 
preclude a public transportation entity from providing full access to 
the entity's service unless some exception applies. For example, an 
individual using a wheelchair who needs to access the bus will be able 
to board the bus even though sidewalk construction or snow prevents the 
individual from boarding the bus from the bus stop; the operator of the 
bus will need to slightly adjust the boarding location so that the 
individual using a wheelchair may board from an accessible location.
    Reasonable modification/accommodation requirements are a 
fundamental tenet of disability nondiscrimination law--for example, 
they are an existing requirement for recipients of Federal assistance 
and are contained in the U.S. Department of Justice's (DOJ) ADA rules 
for public and private entities, the U.S. Department of 
Transportation's (DOT) ADA rules for passenger vessels, and DOT rules 
under the Air Carrier Access Act. In addition, section 504 has long 
been interpreted by the courts to require recipients of Federal 
financial assistance--virtually all public transportation entities 
subject to this final rule--to provide reasonable accommodations by 
making changes to policies, practices, and procedures if needed by an 
individual with a disability to enable him or her to participate in the 
recipient's program or activity, unless providing such accommodations 
are an undue financial and administrative burden or constitute a 
fundamental alteration of the program or activity. Among the 
Department's legal authorities to issue this rulemaking are section 504 
of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and the 
Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213.

II. Summary of the Major Provisions of the Regulatory Action

    Public entities providing designated public transportation (e.g., 
fixed route, demand-responsive, and ADA complementary paratransit) 
service will need to make reasonable modifications/accommodations to 
policies and practices to ensure program accessibility subject to 
several exceptions. These exceptions include when the modification/
accommodation would cause a direct threat to the health or safety of 
others, would result in a fundamental alteration of the service, would 
not actually be necessary in order for the individual with a disability 
to access the entity's service, or (for recipients of Federal financial 
assistance) would result in an undue financial and administrative 
burden. Appendix E of this final rule provides specific examples of 
requested modifications that public transportation entities typically 
would not be required to grant for one or more reasons.
    Public entities providing designated public transportation service 
will need to implement their own processes for making decisions and 
providing reasonable modifications under the ADA to their policies and 
practices. In many instances, entities already have compliant processes 
in place. This final rule does not prescribe the exact processes 
entities must adopt or require DOT approval of the processes. However, 
DOT reserves the right to review an entity's process as part of its 
normal oversight. See 49 CFR 37.169.

III. Costs and Benefits

    The Department estimates that the costs associated with this final 
rule will be minimal for two reasons. First, modifications to policies, 
practices, and procedures, if needed by an individual with a disability 
to enable him or her to participate in a program or activity, are

[[Page 13254]]

already required by other Federal law that applies to recipients of 
Federal financial assistance. Since virtually every entity subject to 
this final rule receives Federal financial assistance, each entity 
should already be modifying its policies, practices, and procedures 
when necessary. Second, the reasonable modification/accommodation 
requirements contained in this final rule are not very different from 
the origin-to-destination requirement already applicable to 
complementary paratransit service, as required by current DOT 
regulations at 49 CFR 37.129(a) and as described in its implementing 
guidance.

The Reasonable Modification NPRM

    Through amendments to the Department's ADA regulations at 49 CFR 
37.5 and 37.169, the NPRM proposed that transportation entities, 
including, but not limited to, public transportation entities required 
to provide complementary paratransit service, must make reasonable 
modifications to their policies and practices to avoid discrimination 
on the basis of disability and ensure program accessibility. Making 
reasonable modifications to policies and practices is a fundamental 
tenet of disability nondiscrimination law, reflected in a number of DOT 
(e.g., 49 CFR 27.11(c)(3), 14 CFR 382.7(c)) and DOJ (e.g., 28 CFR 
35.130(b)(7)) regulations. Moreover, since at least 1979, section 504 
has been interpreted to require recipients of Federal financial 
assistance to provide reasonable accommodations to program 
beneficiaries. See, e.g., Alexander v. Choate, 469 U.S. 287 (1985); 
Southeastern Community College v. Davis, 442 U.S. 397 (1979). In 
accordance with these decisions of the U.S. Supreme Court (e.g., Choate 
and Davis), the obligation to modify policies, practices, and 
procedures is a longstanding obligation under section 504, and the U.S. 
Department of Justice, which has coordination authority for section 504 
pursuant to Executive Order 12250, is in agreement with this 
interpretation.
    However, as the NPRM explained, DOT's ADA regulations do not 
include language specifically requiring regulated parties to make 
reasonable modifications to policies and practices. The Department, 
when drafting 49 CFR part 37, intended that Sec.  37.21(c) would 
incorporate the DOJ provisions on this subject, by saying the 
following:

Entities to which this part applies also may be subject to ADA 
regulations of the Department of Justice (28 CFR parts 35 or 36, as 
applicable). The provisions of this part shall be interpreted in a 
manner that will make them consistent with applicable Department of 
Justice regulations.

    Under this language, provisions of the DOJ regulations concerning 
reasonable modifications of policies and practices applicable to public 
entities, such as 28 CFR 35.130(b)(7), could apply to public entities 
regulated by DOT, while provisions of DOJ regulations on this subject 
applicable to private entities (e.g., 28 CFR 36.302) could apply to 
private entities regulated by DOT. A 1997 court decision appeared to 
share the Department's intention regarding the relationship between DOT 
and DOJ requirements (Burkhart v. Washington Area Metropolitan Transit 
Authority, 112 F.3d 1207 (D.C. Cir. 1997)).
    However, more recent cases that addressed the issue directly held 
that, in the absence of a DOT regulation explicitly requiring 
transportation entities to make reasonable modifications, 
transportation entities were not obligated to make such modifications 
under the ADA. The leading case on this issue was Melton v. Dallas Area 
Rapid Transit (DART), 391 F.3d 669 (5th Cir. 2004); cert. denied 125 S. 
Ct. 2273 (2005). In this case, the court upheld DART's refusal to pick 
up a paratransit passenger with a disability in a public alley behind 
his house, rather than in front of his house (where a steep slope 
allegedly precluded access by the passenger to DART vehicles). The DART 
argued that paratransit operations are not covered by DOJ regulations. 
``Instead,'' as the court summarized DART's argument, ``paratransit 
services are subject only to Department of Transportation regulations 
found in 49 CFR part 37. The Department of Transportation regulations 
contain no analogous provision requiring reasonable modification to be 
made to paratransit services to avoid discrimination.'' 391 F.3d at 
673.
    The court essentially adopted DART's argument, noting that the 
permissive language of Sec.  37.21(c) (``may be subject'') did not 
impose coverage under provisions of DOJ regulations which, by their own 
terms, provided that public transportation programs were ``not subject 
to the requirements of [28 CFR part 35].'' See 391 F.3d at 675. ``It is 
undisputed,'' the court concluded

that the Secretary of Transportation has been directed by statute to 
issue regulations relating specifically to paratransit 
transportation. Furthermore, even if the Secretary only has the 
authority to promulgate regulations relating directly to 
transportation, the reasonable modification requested by the Meltons 
relates specifically to the operation of DART's service and is, 
therefore, exempt from the [DOJ] regulations in 28 CFR Part 35.

Id. Two other cases, Boose v. Tri-County Metropolitan Transportation 
District of Oregon, 587 F.3d 997 (9th Cir. 2009) and Abrahams v. MTA 
Long Island Bus, 644 F.3d 110 (2d Cir. 2011), subsequently agreed with 
Melton.
    Because the Department believed that, as in all other areas of 
disability nondiscrimination law, making reasonable modifications to 
policies and practices is a crucial element of nondiscriminatory and 
accessible service to people with disabilities, we proposed to fill the 
gap the courts had identified in our regulations. Consequently, the 
2006 NPRM proposed amending the DOT rules to require that 
transportation entities, both fixed route and paratransit, make 
reasonable modifications in the provisions of their services when doing 
so is necessary to avoid discrimination or to provide program 
accessibility to services.
    In Sec.  37.5, the general nondiscrimination section of the ADA 
rule, the Department proposed to add a paragraph requiring all public 
entities providing designated public transportation to make reasonable 
modifications to policies and practices where needed to avoid 
discrimination on the basis of disability or to provide program 
accessibility to services. The language was based on DOJ's requirements 
and, like the DOJ regulation, would not require a modification if doing 
so would fundamentally alter the nature of the entity's service.
    The NPRM also proposed to place parallel language in a revised 
Sec.  37.169, replacing an obsolete provision related to over-the-road 
buses. Under the proposal, in order to deny a request for a 
modification, the head of a public entity providing designated public 
transportation services would have had to make a written determination 
that a needed reasonable modification created a fundamental alteration 
or undue burden. The entity would not have been required to seek DOT 
approval for the determination, but DOT could review the entity's 
action (e.g., in the context of a complaint investigation or compliance 
review) as part of a determination about whether the entity had 
discriminated against persons with disabilities. In the case where the 
entity determined that a requested modification created a fundamental 
alteration or undue burden, the entity would be obligated to seek an 
alternative solution that would not create such an undue burden or 
fundamental alteration.
    The ADA and part 37 contain numerous provisions requiring 
transportation entities to ensure that persons with disabilities can 
access and

[[Page 13255]]

use transportation services on a nondiscriminatory basis. Some of these 
provisions relate to the acquisition of vehicles or the construction or 
alteration of transportation facilities. Others concern the provision 
of service by public and private entities, in modes ranging from public 
demand-responsive service for the general public to private over-the-
road buses. Still others concern the provision of complementary 
paratransit service.
    In all of these cases, public transportation entities are likely to 
put policies and procedures in place to carry out applicable 
requirements. In order to achieve the objectives of the underlying 
requirements in certain individual cases, entities may need to depart 
from these otherwise acceptable policies. This final rule concerns the 
scope of situations in which such departures--i.e., reasonable 
modifications--are essential. The underlying provisions of the rule 
describe the ``bottom line'' of what transportation entities must 
achieve. This reasonable modification rule describes how transportation 
entities get to that ``bottom line'' in individual situations where 
entities' normal procedures do not achieve the intended result.
    As comments to the NPRM made clear, an important concern of 
transportation entities is that the DOT final rule makes it possible to 
understand clearly what modifications are expected; in other words, 
which requested modifications would be ``reasonable'' and which would 
not. For example, in the fixed route context, we believe that stopping 
a bus a short distance from a bus stop sign to allow a wheelchair user 
to avoid an obstacle to boarding using a lift (e.g., a utility repair, 
a snowdrift) would generally be reasonable. Establishing a ``flag 
stop'' policy that allowed a passenger to board a bus anywhere, without 
regard to bus stop locations, would not. In the complementary 
paratransit context, the Department would expect, in many 
circumstances, that drivers would provide assistance outside a vehicle 
where needed to overcome an obstacle, but drivers would not have to 
provide personal services that extend beyond the doorway into a 
building to assist a passenger. Appendix E to this final rule addresses 
issues of this kind in greater detail.
    In addition to the ``modification of policies'' language from the 
DOJ ADA rules, there are other features of those rules that are not 
presently incorporated in the DOT ADA rules (e.g., pertaining to 
auxiliary aids and services). The NPRM sought comment on whether it 
would be useful to incorporate any additional provisions from the DOJ 
rules into Part 37.

Comments to the NPRM

    The Department received over 300 comments on the reasonable 
modification provisions of the NPRM. These comments were received 
during the original comment period, a public meeting held in August 
2010, and a reopened comment period at the time of that meeting. The 
comments were polarized, with almost all disability community 
commenters favoring the proposal and almost all transit industry 
commenters opposing it.
    The major themes in transit industry comments opposing the proposal 
were the following. Many transit industry commenters opposed the 
application of the concept of reasonable modification to 
transportation, and a few commenters argued that it was not the job of 
transit entities to surmount barriers existing in communities. Many 
transit commenters said that the rule would force them to make too many 
individual, case-by-case decisions, making program administration 
burdensome, leading to pressure to take unreasonable actions, creating 
the potential for litigation, and making service slower and less 
reliable. Some of these commenters also objected to the proposal that 
the head of an entity, or his designee, would be required to make the 
decision that a requested modification was a fundamental alteration or 
would result in an undue burden, and provide a written decision to the 
requestor, stating this requirement would take substantial staff time 
to complete. Many commenters provided examples or, in some cases, 
extensive lists, of the kinds of modifications they had been asked or 
might be asked to make, many of which they believed were unreasonable. 
A number of commenters said the rule would force paratransit operators 
to operate in a door-to-door mode, eliminating, as a practical matter, 
the curb-to-curb service option. A major comment from many transit 
industry sources was that reasonable modification would unreasonably 
raise the costs of providing paratransit. Per-trip costs would rise, 
various commenters said, because of increased dwell time at stops, the 
need for additional personnel (e.g., an extra staff person on vehicles 
to assist passengers), increased insurance costs, lower service 
productivity, increased need for training, or preventing providers from 
charging fees for what they would otherwise view as premium service. 
Some of these commenters attached numbers to their predictions of 
increased costs (e.g., the costs of paratransit would rise from 22-50 
percent, nationwide costs would rise by $1.89-2.7 billion), though, 
with few exceptions, these numbers appeared to be based on 
extrapolations premised on assumptions about the requirements of the 
NPRM that were contrary to the language of the NPRM's regulatory text 
and preamble or on no analysis at all.
    Commenters opposed to the proposal also raised safety issues, again 
principally in the context of paratransit. Making some reasonable 
modifications would force drivers to leave vehicles, commenters said. 
This could result in other passengers being left alone, which could 
expose them to hazards. Drivers leaving a vehicle would have to turn 
off the vehicle's engine, resulting in no air conditioning or heating 
for other passengers in the time the driver was outside the vehicle. 
The driver could be exposed to injury outside the vehicle (e.g., from a 
trip and fall).
    A smaller number of commenters also expressed concern about the 
application of the reasonable modification concept to fixed route bus 
service. Some commenters said that the idea of buses stopping at other 
than a designated bus stop was generally unsafe and burdensome, could 
cause delays, and impair the clarity of service. A number of these 
commenters appeared to believe that the NPRM could require transit 
entities to stop anywhere along a route where a person with a 
disability was flagging a bus down, which they said would be a 
particularly burdensome practice.
    Commenters also made legal arguments against the proposal. Some 
commenters supported the approach taken by the court in Melton. Others 
said that the Department lacks statutory authority under the ADA to 
require reasonable modification or that reasonably modifying 
paratransit policies and practices would force entities to exceed the 
``comparable'' service requirements of the statute. Some of these 
commenters said that the proposal would push entities too far in the 
direction of providing individualized, human service-type 
transportation, rather than mass transit. A number of commenters also 
said that it was good policy to maintain local option for entities in 
terms of the service they provide. Others argued that the proposed 
action was inconsistent with statutes or Executive Orders related to 
unfunded mandates and Federalism.
    A variety of commenters--in both the disability community and 
transportation industry--noted that a significant number of paratransit 
operators already either provide door-to-door service as

[[Page 13256]]

their basic mode of service (some commenters said as many as 50 percent 
of paratransit operators provide door-to-door service) or follow what, 
in effect, is curb-to-curb with reasonable modification approach for 
paratransit, or allowed fixed route buses flexibility in terms of where 
they stop. Some of these commenters said that transit operators imposed 
conditions on the kind of modifications that could be made (e.g., 
drivers could only leave the vehicle for a limited time or distance).
    In some cases, commenters said, while they use their discretion to 
make the kinds of modifications the NPRM proposed, they wanted these 
actions to remain discretionary, rather than being the subject of a 
Federal mandate. A smaller number of commenters asked for additional 
guidance on expectations under a reasonable modification rule or for 
clarification of an enforcement mechanism for the proposed requirement.
    Disability community commenters were virtually unanimous in 
supporting the proposal, saying that curb-to-curb paratransit service 
was often inadequate for some people with disabilities, who, in some 
circumstances, could not make use of ADA-mandated paratransit service. 
For example, medical oxygen users should not have to use part of their 
supply waiting at the curb for a vehicle; blind passengers may need 
wayfinding assistance to get to or from a vehicle; or bad weather may 
make passage to or from a vehicle unduly difficult for wheelchair 
users. Some disability community commenters supported the inclusion in 
the rule of various other provisions of the DOJ ADA regulations (e.g., 
with respect to auxiliary aids and services).

DOT Response to Comments

    Reasonable modification is a central concept of disability 
nondiscrimination law, based on the principle that it is essential for 
entities to consider individuals with disabilities as individuals, not 
simply as members of a category. The concept recognizes that entities 
may have general policies, legitimate on their face, that prevent 
nondiscriminatory access to entities' service, programs, or facilities 
by some individuals with disabilities under some circumstances. The 
concept calls on entities to make individual exceptions to these 
general policies, where needed to provide meaningful, nondiscriminatory 
access to services, programs, or facilities, unless making such an 
exception would require a fundamental alteration of an entity's 
programs.
    Reasonable modification requirements are part of existing 
requirements for recipients of Federal financial assistance, DOJ ADA 
rules for public and private entities, DOT ADA rules for passenger 
vessels, and DOT rules under the Air Carrier Access Act. In none of 
these contexts has the existence of a reasonable modification 
requirement created a significant obstacle to the conduct of the wide 
variety of public and private functions covered by these rules. Nor has 
it led to noticeable increases in costs. At this point, surface 
transportation entities are the only class of entities not explicitly 
covered by an ADA regulatory reasonable modification requirement. 
Having reviewed the comments to this rulemaking, the Department has 
concluded that commenters failed to make a persuasive case that there 
is legal justification for public transportation entities to be treated 
differently than other transportation entities. Further, per the 
analysis above, section 504 requires entities receiving Federal 
financial assistance to make reasonable accommodations to policies and 
practices when necessary to provide nondiscriminatory access to 
services. This existing requirement applies to nearly all public 
transportation entities.
    As stated in the NPRM, DOT recognizes that not all requests by 
individuals with disabilities for modifications of transportation 
provider policies are, in fact, reasonable. The NPRM recognized three 
types of modifications that would not create an obligation for a 
transportation provider to agree with a request: (1) Those that would 
fundamentally alter the provider's program, (2) those that would create 
a direct threat, as defined in 49 CFR 37.3, as a significant risk to 
the health or safety of others, and (3) those that are not necessary to 
enable an individual to receive the provider's services. The NPRM 
provided some examples of modifications that should be or need not be 
granted. Commenters from both the disability community and the transit 
industry provided a vastly larger set of examples of modifications that 
they had encountered or believed either should or should not be 
granted.
    To respond to commenters' concerns that, given the wide variety of 
requests that can be made, it is too difficult to make the judgment 
calls involved, the Department has created an Appendix E to its ADA 
regulation that lists examples of types of requests that we believe, in 
most cases, either will be reasonable or not. This guidance recognizes 
that, given the wide variety of circumstances with which transportation 
entities and passengers deal, there may be some generally reasonable 
requests that could justly be denied in some circumstances, and some 
requests that generally need not be granted that should be granted in 
other circumstances. In addition, we recognize that no list of 
potential requests can ever be completely comprehensive, since the 
possible situations that can arise are far more varied than can be set 
down in any document. That said, we hope that this Appendix will 
successfully guide transportation entities' actions in a substantial 
majority of the kinds of situations commenters have called to our 
attention, substantially reducing the number of situations in which 
from-scratch judgment calls would need to be made, and will provide an 
understandable framework for transportation entities' thinking about 
specific requests not listed. Of course, as the Department learns of 
situations not covered in the Appendix, we may add to it.
    The Department wants again to make clear that, as stated in the 
preamble to the last rulemaking:

[the] September 2005 guidance concerning origin-to-destination 
service remains the Department's interpretation of the obligations 
of ADA complementary paratransit providers under existing 
regulations. As with other interpretations of regulatory provisions, 
the Department will rely on this interpretation in implementing and 
enforcing the origin-to-destination requirement of part 37. 76 FR 
57924, 57934 (Sept. 19, 2011).

    Thus, achieving the objective of providing origin-to-destination 
service does not require entities to make door-to-door service their 
basic mode of service provision. It remains entirely consistent with 
the Department's ADA rule to provide ADA complementary paratransit in a 
curb-to-curb mode. When a paratransit operator does so, however, it 
would need to make exceptions to its normal curb-to-curb policy where a 
passenger with a disability makes a request for assistance beyond curb-
to-curb service that is needed to provide access to the service and 
does not result in a fundamental alteration or direct threat to the 
health or safety of others. Given the large number of comments on this 
issue, and to further clarify the Department's position on this, we 
have added a definition of ``origin-to-destination'' in part 37.
    As commenters noted, a significant number of paratransit operators 
already follow an origin-to-destination policy that addresses the needs 
of passengers that require assistance beyond the curb in order to use 
the paratransit service. This fact necessarily means that these 
providers can and do handle individual

[[Page 13257]]

requests successfully. When a significant number of complementary 
paratransit systems already do essentially what this rule requires, or 
more, it is difficult to argue that it cannot be done without 
encountering insuperable problems.
    To respond to commenters' concerns about an asserted onerous review 
process of requested modifications, the Department has removed the 
requirement that a response to a request be in writing, and is amending 
the complaint procedure in 49 CFR 27.13, and then mirroring that 
provision in a new section 37.17, to ensure it applies not just to 
recipients of Federal funds but to all designated public transportation 
entities. A person who is denied a modification may file a complaint 
with the entity, but the process would be the same as with any other 
complaint, so no separate complaint procedure is listed in 37.169.
    With respect to fixed route bus service, the Department's 
position--elaborated upon in Appendix E--is that transportation 
providers are not required to stop at nondesignated locations. That is, 
a bus operator would not have to stop and pick up a person who is 
trying to flag down the bus from a location unrelated to or not in 
proximity to a designated stop, regardless of whether or not that 
person has a disability. On the other hand, if a person with a 
disability is near a bus stop, but cannot get to the precise location 
of the bus stop sign (e.g., because there is not an accessible path of 
travel to that precise location) or cannot readily access the bus from 
the precise location of the bus stop sign (e.g., because of 
construction, snow, or a hazard that makes getting onto the lift from 
the area of the bus stop sign too difficult or dangerous), then it is 
consistent both with the principle of reasonable modification and with 
common sense to pick up that passenger a modest distance from the bus 
stop sign. Doing so would not fundamentally alter the service or cause 
significant delays or degradation of service.
    While it is understandable that commenters opposed to reasonable 
modification would support the outcome of Melton and cases that 
followed, it is important to understand that the reasoning of these 
cases is based largely on the proposition that, in the absence of a DOT 
ADA regulation, transportation entities could not be required to make 
reasonable modifications on the basis of DOJ requirements, standing 
alone. This final rule will fill the regulatory gap that Melton 
identified. While Melton stated that there was a gap in coverage with 
respect to public transportation and paratransit, as Sec.  37.5(f) 
notes, private entities that were engaged in the business of providing 
private transportation services have always been obligated to provide 
reasonable modifications under title III of the ADA. Further, as stated 
above, reasonable accommodation is a requirement under section 504 of 
the Rehabilitation Act of 1973.
    We do not agree with commenters who asserted that reasonable 
modification goes beyond the concept of comparable complementary 
paratransit found in the ADA, going too far in the direction of 
individualized, human services transportation, rather than mass 
transit. To the contrary, complementary paratransit remains a shared-
ride service that must meet regulatory service criteria. Nothing in 
this final rule changes that. What the final rule does make clear is 
that in providing complementary paratransit service, transit 
authorities must take reasonable steps, even if case-by-case exceptions 
to general procedures, to make sure that eligible passengers can 
actually get to the service and use it for its intended purpose. ADA 
complementary paratransit remains a safety net for individuals with 
disabilities who cannot use accessible fixed route service. Adhering 
rigidly to policies that deny access to this safety net is inconsistent 
with the nondiscrimination obligations of transportation entities. 
Because transportation entities would not be required to make any 
modifications to their general policies that would fundamentally alter 
their service, the basic safety net nature of complementary paratransit 
service remains unchanged.
    By the terms of the Unfunded Mandates Reform Act of 1995, as 
amended, requirements to comply with nondiscrimination laws, including 
those pertaining to disability, are not unfunded mandates subject to 
the provisions of the Act. 2 U.S.C. 1503. As a practical matter, for 
the vast majority of transportation entities subject to the DOT ADA 
regulation who receive FTA or other DOT financial assistance, 
compliance with any DOT regulations is, to a significant degree, a 
funded mandate. For both these reasons, comments suggesting that the 
proposal would impose an unfunded mandate were incorrect.
    With respect to federalism, State and local governments were 
consulted about the rule, both by means of the opportunity to comment 
on the NPRM and a public meeting. Transportation authorities--many of 
which are likely to be State and local entities--did participate 
extensively in the rulemaking process, as the docket amply 
demonstrates. As stated previously, transportation industry commenters 
prefer to use their discretion to make the kinds of modifications the 
NPRM proposed, rather than being subject to a Federal mandate. These 
entities continue to have the discretion to grant or deny requests for 
reasonable modification, albeit in the context of Appendix E.
    The effects of the final rule on fixed route service are quite 
modest, and comments did not assert the contrary. The issue of the cost 
impact of the reasonable modification focused almost exclusively on ADA 
complementary paratransit. There was little in the way of allegations 
that making exceptions to usual policies would increase costs in fixed 
route service.
    In looking at the allegations of cost increases on ADA 
complementary paratransit, the Department stresses that all recipients 
of Federal financial assistance--which includes public transportation 
entities of complementary paratransit service--are already required to 
modify policies, practices, and procedures if needed by an individual 
with a disability to enable him or her to participate in the 
recipient's programs or activities, and this principle has been applied 
by Federal agencies and the courts accordingly. However, to provide 
commenters with a fuller response to their comments, the Department 
would further make three primary points. First, based on statements on 
transportation provider Web sites and other information, one-half to 
two-thirds of transit authorities already provide either door-to-door 
service as their basic mode of service or provide what amounts to curb-
to-curb service with assistance beyond the curb as necessary in order 
to enable the passenger to use the service. The rule would not require 
any change in behavior, or any increase in costs, for these entities. 
Second, the effect of providing paratransit service in a door-to-door, 
or curb-to-curb, with reasonable modification, mode on per-trip costs 
is minimal. In situations where arrangements for reasonable 
modification are made in advance, which would be a significant portion 
of all paratransit modification requests, per-trip costs could even be 
slightly lower. The concerns expressed by commenters that per-trip 
costs would escalate markedly appear not to be supported by the data. 
Third, there could be cost increases, compared to current behavior, for 
paratransit operators that do not comply with existing origin-to-
destination

[[Page 13258]]

requirements of the rule. Suppressing paratransit ridership by 
preventing eligible individuals from using the service or making the 
use of the service inconvenient saves money for entities. Conversely, 
making service more usable, and hence more attractive, could increase 
usage. Because of the operating cost-intensive nature of paratransit 
service, providing service to more people tends to increase costs. The 
Department estimated that increased costs from increased ridership 
stemming from improved service could amount to $55 million per year 
nationwide for those public transportation entities who are not in 
compliance with the current DOT origin-to-destination regulations.
    This estimate would be at the upper end of the range of possible 
ridership-generated cost increases, since it is not clear that 
transportation entities with a strict curb-to-curb policy never provide 
modifications to their service. Analysts made the assumption that 
transportation agencies with curb-to-curb policies did not make 
modifications when modifications were not mentioned on the entities' 
Web sites. Disability community commenters suggested that, as a 
practical matter, transportation entities often provide what amounts to 
modifications even if their formal policies do not call for doing so.
    In addition, it should be emphasized that transportation entities 
who comply with the existing rule's origin-to-destination requirement 
will not encounter ridership-related cost increases. In an important 
sense, any paratransit operation that sees an increase in ridership 
when this rule goes into effect are experiencing increased costs at 
this time because of their unwillingness to comply with existing 
requirements over the past several years.

Provisions of the Final Rule

    In amendments to 49 CFR part 27 (the Department's section 504 rule) 
and part 37 (the Department's ADA rule for most surface 
transportation), the Department is incorporating specific requirements 
to clarify that public transportation entities are required to modify 
policies, practices, procedures that are needed to ensure access to 
programs, benefits, and services.
    With regard to the Department's section 504 rule at 49 CFR part 27, 
we are revising the regulation to specifically incorporate the 
preexisting reasonable accommodation requirement recognized by the U.S. 
Supreme Court (see, e.g., Choate and Davis). The revised section 27.7 
will clarify that recipients of Federal financial assistance are 
required to provide reasonable accommodations to policies, practices, 
or procedures when the accommodations are necessary to avoid 
discrimination on the basis of disability unless making the 
modifications (1) would fundamentally alter the nature of the service, 
program, or activity, or (2) would result in undue financial and 
administrative burdens.
    With regard to the Department's ADA regulations in part 37, we are 
revising the regulation to further clarify this requirement and to fill 
in the gap identified by the courts. Under our revised part 37 
regulations, public transportation entities may deny requests for 
modifications to their policies and practices on one or more of the 
following grounds: Making the modifications (1) would fundamentally 
alter the nature of the service, program, or activity, (2) would result 
in a direct threat to the health or safety of others, or (3) without 
the requested modification, the individual with a disability is able to 
fully use the entity's services, programs, or activities for their 
intended purpose. Please note that under our section 504 regulations at 
part 27, there is an undue financial and administrative burden defense, 
which is not relevant to our ADA regulations at part 37.
    This final rule revises section 37.169, which focuses on the 
reasonable modification obligations of public entities providing 
designated public transportation, including fixed route, demand-
responsive, and complementary paratransit service. The key requirement 
of the section is that these types of transportation entities implement 
their own processes for making decisions on and providing reasonable 
modifications to their policies and practices. In many cases, agencies 
are handling requests for modifications during the paratransit 
eligibility process, customer service inquiries, and through the long-
existing requirement in the Department's section 504 rule for a 
complaint process. Entities will need to review existing procedures and 
conform them to the new rule as needed. The Department is not requiring 
that the process be approved by DOT, and the shape of the process is up 
to the transportation provider, but it must meet certain basic 
criteria. The DOT can, however, review an entity's process as part of 
normal program oversight, including compliance reviews and complaint 
investigations.
    First, the entity must make information about the process, and how 
to use it, readily available to the public, including individuals with 
disabilities. For example, if a transportation provider uses printed 
media and a Web site to inform customers about bus and paratransit 
services, then it must use these means to inform people about the 
reasonable modification process. Of course, like all communications, 
this information must be provided by means accessible to individuals 
with disabilities.\1\
---------------------------------------------------------------------------

    \1\ See 28 CFR 35.160(b)(1).
---------------------------------------------------------------------------

    Second, the process must provide an accessible means by which 
individuals with disabilities can request a reasonable modification/
accommodation. Whenever feasible, requests for modifications should be 
made in advance. This is particularly appropriate where a permanent or 
long-term condition or barrier is the basis for the request (e.g., 
difficulty in access to a paratransit vehicle from the passenger's 
residence; the need to eat a snack on a rail car to maintain a 
diabetic's blood sugar levels; lack of an accessible path of travel to 
a bus stop, resulting in a request to have the bus stop a short 
distance from the bus stop location). In the paratransit context, it 
may often be possible to consider requests of this kind in conjunction 
with the eligibility process. The request from the individual with a 
disability should be as specific as possible and include information on 
why the requested modification is needed in order to allow the 
individual to use the transportation provider's services.
    Third, the process must also provide for those situations in which 
an advance request and determination is not feasible. The Department 
recognizes that these situations are likely to be more difficult to 
handle than advance requests, but responding to them is necessary. For 
example, a passenger who uses a wheelchair may be able to board a bus 
at a bus stop near his residence but may be unable to disembark due to 
a parked car or utility repair blocking the bus boarding and alighting 
area at the stop near his destination. In such a situation, the transit 
vehicle operator would have the front-line responsibility for deciding 
whether to grant the on-the-spot request, though it would be consistent 
with the rule for the operator to call his or her supervisor for 
guidance on how to proceed.
    Further, section 37.169 states three grounds on which a 
transportation provider could deny a requested modification. These 
grounds apply both to advance requests and on-the-spot requests. The 
first ground is that the request would result in a fundamental 
alteration of the provider's services (e.g., a request for a dedicated 
vehicle in

[[Page 13259]]

paratransit service, a request for a fixed route bus to deviate from 
its normal route to pick up someone). The second ground is that 
fulfilling a request for a modification would create a direct threat to 
the health or safety of others (e.g., a request that would require a 
driver to engage in a highly hazardous activity in order to assist a 
passenger, such as having to park a vehicle for a prolonged period of 
time in a no-parking zone on a high-speed, high-volume highway that 
would expose the vehicle to a heightened probability of being involved 
in a crash). Third, the requested modification would not be necessary 
to permit the passenger to use the entity's services for their intended 
purpose in a nondiscriminatory fashion (e.g., the modification might 
make transportation more convenient for the passenger, who could 
nevertheless use the service successfully to get where he or she is 
going without the modification). Appendix E provides additional 
examples of requested modifications that transportation entities 
usually would not be required to grant for one or more of these 
reasons.
    Where a transportation provider has a sound basis, under this 
section, for denying a reasonable modification request, the entity 
would still need to do all it could to enable the requester to receive 
the services and benefits it provides (e.g., a different work-around to 
avoid an obstacle to transportation from the one requested by the 
passenger). Transportation agencies that are Federal recipients are 
required to have a complaint process in place. The Department has added 
a new section 37.17 that extends the changes made to 49 CFR 27.13 to 
all public and private entities that provide transportation services, 
regardless of whether the entity receives Federal funds.
    By requiring entities to implement a local reasonable modification 
process, the Department intends decisions on individual requests for 
modification to be addressed at the local level. The Department does 
not intend to use its complaint process to resolve disagreements 
between transportation entities and individuals with disabilities about 
whether a particular modification request should have been granted. 
However, if an entity does not have the required process, it is not 
being operated properly (e.g., the process is inaccessible to people 
with disabilities, does not respond to communications from prospective 
complainants), it is not being operated in good faith (e.g., virtually 
all complaints are routinely rejected, regardless of their merits), or 
in any particular case raising a Federal interest, DOT agencies may 
intervene and take enforcement action.

Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), DOT Regulatory 
Policies and Procedures, and Executive Order 13563 (Improving 
Regulation and Regulatory Review)

    This final rule is not significant for purposes of Executive Orders 
12866 and 13563 and the Department of Transportation's Regulatory 
Policies and Procedures. Therefore, it has not been reviewed by the 
Office of Management and Budget under Executive Order 12866 and 
Executive Order 13563. The costs of this rulemaking are expected to be 
minimal for two reasons. First, modifications to policies, practices, 
and procedures, if needed by an individual with a disability to enable 
him or her to participate in a program or activity, are already 
required by other Federal law that applies to recipients of Federal 
financial assistance. Since virtually every entity subject to this 
final rule receives Federal financial assistance, each entity should 
already be modifying its policies, practices, and procedures when 
necessary. Second, the reasonable modification/accommodation 
requirements contained in this final rule are not very different from 
the origin-to-destination requirement already applicable to 
complementary paratransit service, as required by current DOT 
regulations at 49 CFR 37.129(a) and as described in its implementing 
guidance. However, the Department recognizes that it is likely that 
some regulated entities are not complying with the current section 504 
requirements and origin-to-destination regulation. In those 
circumstances only, the Department estimates that increased costs from 
increased ridership stemming from improved service could amount to $55 
million per year nationwide for those public transportation entities 
who are not in compliance with the current DOT origin-to-destination 
regulations and section 504 requirements. Those costs are not a cost of 
this rule, but rather a cost of coming into compliance with current 
law.

Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. This final rule does 
not include any provision that (1) has substantial direct effects on 
the States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various level of government; (2) imposes substantial direct compliance 
costs on State and local governments; or (3) preempts State law. 
Therefore, the rule does not have federalism impacts sufficient to 
warrant the preparation of a Federalism Assessment.

Executive Order 13084 (Consultation and Coordination With Indian Tribal 
Governments)

    The final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084. Because this final 
rule does not significantly or uniquely affect the communities of the 
Indian Tribal governments or impose substantial direct compliance costs 
on them, the funding and consultation requirements of Executive Order 
13084 do not apply.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
The Department certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. The rule may 
affect actions of some small entities (e.g., small paratransit 
operations). However, the bulk of paratransit operators are not small 
entities, and the majority of all paratransit operators already appear 
to be in compliance. There are not significant cost impacts on fixed 
route service at all, and the number of small grantees who operate 
fixed route systems is not large. Since operators can provide service 
in a demand-responsive mode (e.g., route deviation) that does not 
require the provision of complementary paratransit, significant 
financial impacts on any given operator are unlikely.

Paperwork Reduction Act

    This rule imposes no new information reporting or recordkeeping 
necessitating clearance by the Office of Management and Budget.

National Environmental Policy Act

    The agency has analyzed the environmental impacts of this action 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing

[[Page 13260]]

procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.5 of DOT Order 5610.1C incorporates by reference the 
categorical exclusions for all DOT Operating Administrations. This 
action is covered by the categorical exclusion listed in the Federal 
Highway Administration's implementing procedures, ``[p]romulgation of 
rules, regulations, and directives.'' 23 CFR 771.117(c)(20). The 
purpose of this rulemaking is to provide that transportation entities 
are required to make reasonable modifications/accommodations to 
policies, practices, and procedures to avoid discrimination and ensure 
that their programs are accessible to individuals with disabilities. 
The agency does not anticipate any environmental impacts, and there are 
no extraordinary circumstances present in connection with this 
rulemaking.
    There are a number of other statutes and Executive Orders that 
apply to the rulemaking process that the Department considers in all 
rulemakings. However, none of them is relevant to this rule. These 
include the Unfunded Mandates Reform Act (which does not apply to 
nondiscrimination/civil rights requirements), Executive Order 12630 
(concerning property rights), Executive Order 12988 (concerning civil 
justice reform), and Executive Order 13045 (protection of children from 
environmental risks).

List of Subjects

49 CFR Part 27

    Administrative practice and procedure, Airports, Civil rights, 
Highways and roads, Individuals with disabilities, Mass transportation, 
Railroads, Reporting and recordkeeping requirements.

49 CFR Part 37

    Buildings and facilities, Buses, Civil rights, Individuals with 
disabilities, Mass transportation, Railroads, Reporting and 
recordkeeping requirements, Transportation.

    For the reasons set forth in the preamble, the Department of 
Transportation amends 49 CFR parts 27 and 37, as follows:

PART 27--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
1. The authority citation for part 27 is revised to read as follows:

    Authority:  Section 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794); 49 U.S.C. 5332.

0
2. Amend Sec.  27.7 by adding a new paragraph (e) to read as follows:

Sec.  27.7  Discrimination prohibited.

* * * * *
    (e) Reasonable accommodations. A recipient shall make reasonable 
accommodations in policies, practices, or procedures when such 
accommodations are necessary to avoid discrimination on the basis of 
disability unless the recipient can demonstrate that making the 
accommodations would fundamentally alter the nature of the service, 
program, or activity or result in an undue financial and administrative 
burden. For the purposes of this section, the term reasonable 
accommodation shall be interpreted in a manner consistent with the term 
``reasonable modifications'' as set forth in the Americans with 
Disabilities Act title II regulations at 28 CFR 35.130(b)(7), and not 
as it is defined or interpreted for the purposes of employment 
discrimination under title I of the ADA (42 U.S.C. 12111-12112) and its 
implementing regulations at 29 CFR part 1630.

0
3. Revise Sec.  27.13 to read as follows:

Sec.  27.13  Designation of responsible employee and adoption of 
complaint procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one person to coordinate its efforts to comply with 
this part.
    (b) Adoption of complaint procedures. A recipient shall adopt 
procedures that incorporate appropriate due process standards and 
provide for the prompt and equitable resolution of complaints alleging 
any action prohibited by this part and 49 CFR parts 37, 38, and 39. The 
procedures shall meet the following requirements:
    (1) The process for filing a complaint, including the name, 
address, telephone number, and email address of the employee designated 
under paragraph (a) of this section, must be sufficiently advertised to 
the public, such as on the recipient's Web site;
    (2) The procedures must be accessible to and usable by individuals 
with disabilities;
    (3) The recipient must promptly communicate its response to the 
complaint allegations, including its reasons for the response, to the 
complainant by a means that will result in documentation of the 
response.

PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES 
(ADA)

0
4. The authority citation for part 27 continues to read as follows:

    Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

0
5. In Sec.  37.3, add a definition of ``Origin-to-destination service'' 
in alphabetical order to read as follows:

Sec.  37.3  Definitions.

* * * * *
    Origin-to-destination service means providing service from a 
passenger's origin to the passenger's destination. A provider may 
provide ADA complementary paratransit in a curb-to-curb or door-to-door 
mode. When an ADA paratransit operator chooses curb-to-curb as its 
primary means of providing service, it must provide assistance to those 
passengers who need assistance beyond the curb in order to use the 
service unless such assistance would result in in a fundamental 
alteration or direct threat.
* * * * *
0
6. Amend Sec.  37.5 by revising paragraph (h) and adding paragraph (i) 
to read as follows:

Sec.  37.5  Nondiscrimination.

* * * * *
    (h) It is not discrimination under this part for an entity to 
refuse to provide service to an individual with disabilities because 
that individual engages in violent, seriously disruptive, or illegal 
conduct, or represents a direct threat to the health or safety of 
others. However, an entity shall not refuse to provide service to an 
individual with disabilities solely because the individual's disability 
results in appearance or involuntary behavior that may offend, annoy, 
or inconvenience employees of the entity or other persons.
    (i) Public and private entity distinctions.-- (1) Private entity-
private transport. Private entities that are primarily engaged in the 
business of transporting people and whose operations affect commerce 
shall not discriminate against any individual on the basis of 
disability in the full and equal enjoyment of specified transportation 
services. This obligation includes, with respect to the provision of 
transportation services, compliance with the requirements of the rules 
of the Department of Justice concerning

[[Page 13261]]

eligibility criteria, making reasonable modifications, providing 
auxiliary aids and services, and removing barriers (28 CFR 36.301-
36.306).
    (2) Private entity-public transport. Private entities that provide 
specified public transportation shall make reasonable modifications in 
policies, practices, or procedures, when the modifications are 
necessary to afford goods, services, facilities, privileges, 
advantages, or accommodations to individuals with disabilities, unless 
the entity can demonstrate that making the modifications would 
fundamentally alter the nature of the goods, services, facilities, 
privileges, advantages, or accommodations.
    (3) Public entity-public transport. Public entities that provide 
designated public transportation shall make reasonable modifications in 
policies, practices, or procedures when the modifications are necessary 
to avoid discrimination on the basis of disability or to provide 
program accessibility to their services, subject to the limitations of 
Sec.  37.169(c)(1)-(3). This requirement applies to the means public 
entities use to meet their obligations under all provisions of this 
part.
    (4) In choosing among alternatives for meeting nondiscrimination 
and accessibility requirements with respect to new, altered, or 
existing facilities, or designated or specified transportation 
services, public and private entities shall give priority to those 
methods that offer services, programs, and activities to qualified 
individuals with disabilities in the most integrated setting 
appropriate to the needs of individuals with disabilities.

0
7. Add Sec.  37.17 to read as follows:

Sec.  37.17  Designation of responsible employee and adoption of 
complaint procedures.

    (a) Designation of responsible employee. Each public or private 
entity subject to this part shall designate at least one person to 
coordinate its efforts to comply with this part. (b) Adoption of 
complaint procedures. An entity shall adopt procedures that incorporate 
appropriate due process standards and provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this part and 49 CFR parts 27, 38 and 39. The procedures shall meet the 
following requirements:
    (1) The process for filing a complaint, including the name, 
address, telephone number, and email address of the employee designated 
under paragraph (a) of this section, must be sufficiently advertised to 
the public, such as on the entity's Web site;
    (2) The procedures must be accessible to and usable by individuals 
with disabilities;
    (3) The entity must promptly communicate its response to the 
complaint allegations, including its reasons for the response, to the 
complainant and must ensure that it has documented its response.

0
8. Add Sec.  37.169 to read as follows:

Sec.  37.169  Process to be used by public entities providing 
designated public transportation service in considering requests for 
reasonable modification.

    (a)(1) A public entity providing designated public transportation, 
in meeting the reasonable modification requirement of Sec.  37.5(g)(1) 
with respect to its fixed route, demand responsive, and complementary 
paratransit services, shall respond to requests for reasonable 
modification to policies and practices consistent with this section.
    (2) The public entity shall make information about how to contact 
the public entity to make requests for reasonable modifications readily 
available to the public through the same means it uses to inform the 
public about its policies and practices.
    (3) This process shall be in operation no later than July 13, 2015.
    (b) The process shall provide a means, accessible to and usable by 
individuals with disabilities, to request a modification in the 
entity's policies and practices applicable to its transportation 
services.
    (1) Individuals requesting modifications shall describe what they 
need in order to use the service.
    (2) Individuals requesting modifications are not required to use 
the term ``reasonable modification'' when making a request.
    (3) Whenever feasible, requests for modifications shall be made and 
determined in advance, before the transportation provider is expected 
to provide the modified service, for example, during the paratransit 
eligibility process, through customer service inquiries, or through the 
entity's complaint process.
    (4) Where a request for modification cannot practicably be made and 
determined in advance (e.g., because of a condition or barrier at the 
destination of a paratransit or fixed route trip of which the 
individual with a disability was unaware until arriving), operating 
personnel of the entity shall make a determination of whether the 
modification should be provided at the time of the request. Operating 
personnel may consult with the entity's management before making a 
determination to grant or deny the request.
    (c) Requests for modification of a public entity's policies and 
practices may be denied only on one or more of the following grounds:
    (1) Granting the request would fundamentally alter the nature of 
the entity's services, programs, or activities;
    (2) Granting the request would create a direct threat to the health 
or safety of others;
    (3) Without the requested modification, the individual with a 
disability is able to fully use the entity's services, programs, or 
activities for their intended purpose.
    (d) In determining whether to grant a requested modification, 
public entities shall be guided by the provisions of Appendix E to this 
Part.
    (e) In any case in which a public entity denies a request for a 
reasonable modification, the entity shall take, to the maximum extent 
possible, any other actions (that would not result in a direct threat 
or fundamental alteration) to ensure that the individual with a 
disability receives the services or benefit provided by the entity.
    (f)(1) Public entities are not required to obtain prior approval 
from the Department of Transportation for the process required by this 
section.
    (2) DOT agencies retain the authority to review an entity's process 
as part of normal program oversight.

0
9. Add a new Appendix E to Part 37 to read as follows:

Appendix E to Part 37--Reasonable Modification Requests

    A. This appendix explains the Department's interpretation of 
Sec. Sec.  37.5(g) and 37.169. It is intended to be used as the 
official position of the Department concerning the meaning and 
implementation of these provisions. The Department also issues 
guidance by other means, as provided in Sec.  37.15. The Department 
also may update this appendix periodically, provided in response to 
inquiries about specific situations that are of general relevance or 
interest.
    B. The Department's ADA regulations contain numerous 
requirements concerning fixed route, complementary paratransit, and 
other types of transportation service. Transportation entities 
necessarily formulate policies and practices to meet these 
requirements (e.g., providing fixed route bus service that people 
with disabilities can use to move among stops on the system, 
providing complementary paratransit service that gets eligible 
riders from their point of origin to their point of destination). 
There may be certain situations, however, in which the otherwise 
reasonable policies and practices of entities do not suffice to 
achieve the regulation's objectives. Implementing a fixed route bus 
policy in the normal way may

[[Page 13262]]

not allow a passenger with a disability to access and use the system 
at a particular location. Implementing a paratransit policy in the 
usual way may not allow a rider to get from his or her origin to his 
or her destination. In these situations, subject to the limitations 
discussed below, the transportation provider must make reasonable 
modifications of its service in order to comply with the underlying 
requirements of the rule. These underlying provisions tell entities 
the end they must achieve; the reasonable modification provision 
tells entities how to achieve that end in situations in which normal 
policies and practices do not succeed in doing so.
    C. As noted above, the responsibility of entities to make 
requested reasonable modifications is not without some limitations. 
There are four classes of situations in which a request may 
legitimately be denied. The first is where granting the request 
would fundamentally alter the entity's services, programs, or 
activities. The second is where granting the request would create a 
direct threat to the health or safety of others. The third is where 
without the requested modification, the individual with a disability 
is able to fully use the entity's services, programs, or activities 
for their intended purpose. The fourth, which applies only to 
recipients of Federal financial assistance, is where granting the 
request would cause an undue financial and administrative burden. In 
the examples that follow, these limitations are taken into account.
    D. The examples included in this appendix are neither exhaustive 
nor exclusive. Transportation entities may need to make 
determinations about requests for reasonable modification that are 
not described in this appendix. Importantly, reasonable modification 
applies to an entities' own policies and practices, and not 
regulatory requirements contained in 49 CFR parts 27, 37, 38, and 
39, such as complementary paratransit service going beyond \3/4\ 
mile of the fixed route, providing same day complementary 
paratransit service, etc.

Examples

    1. Snow and Ice. Except in extreme conditions that rise to the 
level of a direct threat to the driver or others, a passenger's 
request for a paratransit driver to walk over a pathway that has not 
been fully cleared of snow and ice should be granted so that the 
driver can help the passenger with a disability navigate the 
pathway. For example, ambulatory blind passengers often have 
difficulty in icy conditions, and allowing the passenger to take the 
driver's arm will increase both the speed and safety of the 
passenger's walk from the door to the vehicle. Likewise, if snow or 
icy conditions at a bus stop make it difficult or impossible for a 
fixed route passenger with a disability to get to a lift, or for the 
lift to deploy, the driver should move the bus to a cleared area for 
boarding, if such is available within reasonable proximity to the 
stop (see Example 4 below).
    2. Pick Up and Drop Off Locations with Multiple Entrances. A 
paratransit rider's request to be picked up at home, but not at the 
front door of his or her home, should be granted, as long as the 
requested pick-up location does not pose a direct threat. Similarly, 
in the case of frequently visited public places with multiple 
entrances (e.g., shopping malls, employment centers, schools, 
hospitals, airports), the paratransit operator should pick up and 
drop off the passenger at the entrance requested by the passenger, 
rather than meet them in a location that has been predetermined by 
the transportation agency, again assuming that doing so does not 
involve a direct threat.
    3. Private Property. Paratransit passengers may sometimes seek 
to be picked up on private property (e.g., in a gated community or 
parking lot, mobile home community, business or government facility 
where vehicle access requires authorized passage through a security 
barrier). Even if the paratransit operator does not generally have a 
policy of picking up passengers on such private property, the 
paratransit operator should make every reasonable effort to gain 
access to such an area (e.g., work with the passenger to get the 
permission of the property owner to permit access for the 
paratransit vehicle). The paratransit operator is not required to 
violate the law or lawful access restrictions to meet the 
passenger's requests. A public or private entity that unreasonably 
denies access to a paratransit vehicle may be subject to a complaint 
to the U.S. Department of Justice or U.S. Department of Housing and 
Urban Development for discriminating against services for persons 
with disabilities.
    4. Obstructions. For fixed route services, a passenger's request 
for a driver to position the vehicle to avoid obstructions to the 
passenger's ability to enter or leave the vehicle at a designated 
stop location, such as parked cars, snow banks, and construction, 
should be granted so long as positioning the vehicle to avoid the 
obstruction does not pose a direct threat. To be granted, such a 
request should result in the vehicle stopping in reasonably close 
proximity to the designated stop location. Transportation entities 
are not required to pick up passengers with disabilities at 
nondesignated locations. Fixed route operators would not have to 
establish flag stop or route-deviation policies, as these would be 
fundamental alterations to a fixed route system rather than 
reasonable modifications of a system. Likewise, subject to the 
limitations discussed in the introduction to this appendix, 
paratransit operators should be flexible in establishing pick up and 
drop off points to avoid obstructions.
    5. Fare Handling. A passenger's request for transit personnel 
(e.g., the driver, station attendant) to handle the fare media when 
the passenger with a disability cannot pay the fare by the generally 
established means should be granted on fixed route or paratransit 
service (e.g., in a situation where a bus passenger cannot reach or 
insert a fare into the farebox). Transit personnel are not required 
to reach into pockets or backpacks in order to extract the fare 
media.
    6. Eating and Drinking. If a passenger with diabetes or another 
medical condition requests to eat or drink aboard a vehicle or in a 
transit facility in order to avoid adverse health consequences, the 
request should be granted, even if the transportation provider has a 
policy that prohibits eating or drinking. For example, a person with 
diabetes may need to consume a small amount of orange juice in a 
closed container or a candy bar in order to maintain blood sugar 
levels.
    7. Medicine. A passenger's request to take medication while 
aboard a fixed route or paratransit vehicle or in a transit facility 
should be granted. For example, transit agencies should modify their 
policies to allow individuals to administer insulin injections and 
conduct finger stick blood glucose testing. Transit staff need not 
provide medical assistance, however, as this would be a fundamental 
alteration of their function.
    8. Boarding Separately From Wheelchair. A wheelchair user's 
request to board a fixed route or paratransit vehicle separately 
from his or her device when the occupied weight of the device 
exceeds the design load of the vehicle lift should generally be 
granted. (Note, however, that under Sec.  37.165(b), entities are 
required to accommodate device/user loads and dimensions that exceed 
the former ``common wheelchair'' standard, as long as the vehicle 
and lift will accommodate them.)
    9. Dedicated vehicles or special equipment in a vehicle. A 
paratransit passenger's request for special equipment (e.g., the 
installation of specific hand rails or a front seat in a vehicle for 
the passenger to avoid nausea or back pain) can be denied so long as 
the requested equipment is not required by the Americans with 
Disabilities Act or the Department's rules. Likewise, a request for 
a dedicated vehicle (e.g., to avoid residual chemical odors) or a 
specific type or appearance of vehicle (e.g., a sedan rather than a 
van, in order to provide more comfortable service) can be denied. In 
all of these cases, the Department views meeting the request as 
involving a fundamental alteration of the provider's service.
    10. Exclusive or Reduced Capacity Paratransit Trips. A 
passenger's request for an exclusive paratransit trip may be denied 
as a fundamental alteration of the entity's services. Paratransit is 
by nature a shared-ride service.
    11. Outside of the Service Area or Operating Hours. A person's 
request for fixed route or paratransit service may be denied when 
honoring the request would require the transportation provider to 
travel outside of its service area or to operate outside of its 
operating hours. This request would not be a reasonable modification 
because it would constitute a fundamental alteration of the entity's 
service.
    12. Personal Care Attendant (PCA). While PCAs may travel with a 
passenger with a disability, transportation agencies are not 
required to provide a personal care attendant or personal care 
attendant services to meet the needs of passengers with disabilities 
on paratransit or fixed route trips. For example, a passenger's 
request for a transportation entity's driver to remain with the 
passenger who, due to his or her disability, cannot be left alone 
without an attendant upon reaching his or her destination may be 
denied. It would be a fundamental alteration of the driver's 
function to provide PCA services of this kind.

[[Page 13263]]

    13. Intermediate Stops. The Department views granting a 
paratransit passenger's request for a driver to make an intermediate 
stop, where the driver would be required to wait, as optional. For 
example, a passenger with a disability arranges to be picked up at a 
medical facility and dropped off at home. On the way, the passenger 
with a disability wishes to stop by a pharmacy and requests that the 
driver park outside of the pharmacy, wait for the passenger to 
return, and then continue the ride home. While this can be a very 
useful service to the rider, and in some cases can save the 
provider's time and money (by scheduling and providing a separate 
trip to and from the drug store), such a stop in the context of a 
shared ride system is not required. Since paratransit is, by its 
nature, a shared ride system, requests that could disrupt schedules 
and inconvenience other passengers could rise to the level of a 
fundamental alteration.
    14. Payment. A passenger's request for a fixed route or 
paratransit driver to provide the transit service when the passenger 
with a disability cannot or refuses to pay the fare may be denied. 
If the transportation agency requires payment to ride, then to 
provide a free service would constitute a fundamental alteration of 
the entity's service.
    15. Caring for Service Animals. A paratransit or fixed route 
passenger's request that the driver take charge of a service animal 
may be denied. Caring for a service animal is the responsibility of 
the passenger or a PCA.
    16. Opening Building Doors. For paratransit services, a 
passenger's request for the driver to open an exterior entry door to 
a building to provide boarding and/or alighting assistance to a 
passenger with a disability should generally be granted as long as 
providing this assistance would not pose a direct threat, or leave 
the vehicle unattended or out of visual observation for a lengthy 
period of time.\1\ Note that a request for ``door-through-door'' 
service (i.e., assisting the passenger past the door to the 
building) generally would not need to be granted because it could 
rise to the level of a fundamental alteration.
---------------------------------------------------------------------------

    \1\ Please see guidance issued on this topic. U.S. Department of 
Transportation, Origin-to-Destination Service, September 1, 2005, 
available at http://www.fta.dot.gov/12325_3891.html (explaining 
that, ``the Department does not view transit providers' obligations 
as extending to the provision of personal services. . . . Nor would 
drivers, for lengthy periods of time, have to leave their vehicles 
unattended or lose the ability to keep their vehicles under visual 
observation, or take actions that would be clearly unsafe . . .'').
---------------------------------------------------------------------------

    17. Exposing Vehicle to Hazards. If the passenger requests that 
a vehicle follow a path to a pick up or drop off point that would 
expose the vehicle and its occupants to hazards, such as running off 
the road, getting stuck, striking overhead objects, or reversing the 
vehicle down a narrow alley, the request can be denied as creating a 
direct threat.
    18. Hard-to-Maneuver Stops. A passenger may request that a 
paratransit vehicle navigate to a pick-up point to which it is 
difficult to maneuver a vehicle. A passenger's request to be picked 
up in a location that is difficult, but not impossible or 
impracticable, to access should generally be granted as long as 
picking up the passenger does not expose the vehicle to hazards that 
pose a direct threat (e.g., it is unsafe for the vehicle and its 
occupants to get to the pick-up point without getting stuck or 
running off the road).
    19. Specific Drivers. A passenger's request for a specific 
driver may be denied. Having a specific driver is not necessary to 
afford the passenger the service provided by the transit operator.
    20. Luggage and Packages. A passenger's request for a fixed 
route or paratransit driver to assist with luggage or packages may 
be denied in those instances where it is not the normal policy or 
practice of the transportation agency to assist with luggage or 
packages. Such assistance is a matter for the passenger or PCA, and 
providing this assistance would be a fundamental alteration of the 
driver's function.
    21. Request to Avoid Specific Passengers. A paratransit 
passenger's request not to ride with certain passengers may be 
denied. Paratransit is a shared-ride service. As a result, one 
passenger may need to share the vehicle with people that he or she 
would rather not.
    22. Navigating an Incline, or Around Obstacles. A paratransit 
passenger's request for a driver to help him or her navigate an 
incline (e.g., a driveway or sidewalk) with the passenger's wheeled 
device should generally be granted. Likewise, assistance in 
traversing a difficult sidewalk (e.g., one where tree roots have 
made the sidewalk impassible for a wheelchair) should generally be 
granted, as should assistance around obstacles (e.g., snowdrifts, 
construction areas) between the vehicle and a door to a passenger's 
house or destination should generally be granted. These 
modifications would be granted subject, of course, to the proviso 
that such assistance would not cause a direct threat, or leave the 
vehicle unattended or out of visual observation for a lengthy period 
of time.
    23. Extreme Weather Assistance. A passenger's request to be 
assisted from his or her door to a vehicle during extreme weather 
conditions should generally be granted so long as the driver leaving 
the vehicle to assist would not pose a direct threat, or leave the 
vehicle unattended or out of visual observation for a lengthy period 
of time. For example, in extreme weather (e.g., very windy or stormy 
conditions), a person who is blind or vision-impaired or a frail 
elderly person may have difficulty safely moving to and from a 
building.
    24. Unattended Passengers. Where a passenger's request for 
assistance means that the driver will need to leave passengers 
aboard a vehicle unattended, transportation agencies should 
generally grant the request as long as accommodating the request 
would not leave the vehicle unattended or out of visual observation 
for a lengthy period of time, both of which could involve direct 
threats to the health or safety of the unattended passengers. It is 
important to keep in mind that, just as a driver is not required to 
act as a PCA for a passenger making a request for assistance, so a 
driver is not intended to act as a PCA for other passengers in the 
vehicle, such that he or she must remain in their physical presence 
at all times.
    25. Need for Return Trip Assistance. A passenger with a 
disability may need assistance for a return trip when he or she did 
not need that assistance on the initial trip. For example, a 
dialysis patient may have no problem waiting at the curb for a ride 
to go to the dialysis center, but may well require assistance to the 
door on his or her return trip because of physical weakness or 
fatigue. To the extent that this need is predictable, it should be 
handled in advance, either as part of the eligibility process or the 
provider's reservations process. If the need arises unexpectedly, 
then it would need to be handled on an ad hoc basis. The paratransit 
operator should generally provide such assistance, unless doing so 
would create a direct threat, or leave the vehicle unattended or out 
of visual observation for a lengthy period of time.
    26. Five-Minute Warning or Notification of Arrival Calls. A 
passenger's request for a telephone call 5 minutes (or another 
reasonable interval) in advance or at time of vehicle arrival 
generally should be granted. As a matter of courtesy, such calls are 
encouraged as a good customer service model and can prevent ``no 
shows.'' Oftentimes, these calls can be generated through an 
automated system. In those situations where automated systems are 
not available and paratransit drivers continue to rely on hand-held 
communication devices (e.g., cellular telephones) drivers should 
comply with any State or Federal laws related to distracted driving.
    27. Hand-Carrying. Except in emergency situations, a passenger's 
request for a driver to lift the passenger out of his or her 
mobility device should generally be denied because of the safety, 
dignity, and privacy issues implicated by hand-carrying a passenger. 
Hand-carrying a passenger is also a PCA-type service which is 
outside the scope of driver duties, and hence a fundamental 
alteration.

    Issued this 6th day of March, 2015, at Washington, DC, under 
authority delegated in 49 CFR 1.27(a).
Kathryn B. Thomson,
General Counsel.
[FR Doc. 2015-05646 Filed 3-12-15; 8:45 am]
 BILLING CODE 4910-9X-P
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